47 comments:

You guys should tune in to watch your hometown JJ Watt who'll start his first pro-playoff game. He's been a beast this year, maybe the best defensive lineman we ever drafted. He'll bat down at least one pass today, he seems to make a big play in every game.

The guy loves Madison and tweets about it every time he returns there, which he's done a few times this year.

Of course, NPR calls what Dan Savage did a "stunt". Just like Democrat Dick Tuck, who cut the Rockefeller campaign's phone lines at the '64 Republican Convention and told a credulous media it was the Goldwater people who did it, was termed a "prankster".

Anyone "else" and they would be "dirty tricks".

Also, Santorum doesn't do anything about it because it serves a purpose.

That is a rather odd bust. The Western tradition of portrait sculpture from its foundation until around the middle of the third century of the common era was to color the flesh and raiment realistically with either some form of paint, or to embellish the stone with precious metal like gold leaf. The eyes were featureless surfaces waiting for paint to add direction and expression to the gaze.

Beginning around 250 CE sculptors learned to carve the eye in its details and lights. They also began to leave the medium with its natural surface, making the work purely sculpture.

This artist has combined ancient and modern idioms; he's colored the raiment and the hair and left the flesh bronze. (What is that shirt's white? Enamel?)

Personally, I don't like it. It should have been left bare bronze throughout. When I look at it instead of being drawn to the eyes my gaze fixes on the bow tie!

Yesterday I saw the young-Althouse-in-the-library doppelgänger at the coffeeshop when I was getting my car smogged. I snapped a picture on my way out the door. It's dark, and some of the details are off (e.g., Sunset Magazine--too west coast), but the big glasses, disheveled hair, funky sweater, her expression... You'll have to take my word for it, but the whole presentation was spot on. When she took out her sketchbook, I made a small orgasm noise. Link.

Folks, I have an extremely early draft of a letter to the editor, and I'd really appreciate some feedback on it (especially from those apt to disagree—Garage!). This is an important issue, and so the writing has to be as concise and punchy as posssibly; right now, it's too long and feels very flabby and needs to be whipped quickly into shape. There's some time pressure here, so I'm asking for help from the community here in spotting the problems rather than percolating on it over the next week. Any thoughts and suggestions are appreciated in advance.

"SIR—I think that the modern understanding of the recess appointments clause—which holds that Presidents may fill vacancies that exist during a Senate recess rather than only those that happen to arise—is wrong. But let's assume it's correct. By that standard, President Bush's recess appointments were okay, and, in principle, so would be a decision by President Obama to fill the vacant Directorship of the USCFPB.

This week, however, the President asserted authority to make that recess appointment even though the Senate is not in recess. He can do this, he believes, because he has judged that the Senate's session is a "sham," that it is in a de facto recess even if it is in a pro forma session. For years, people argued over how long the Senate must be in recess before RAP kicks in, but no one doubted that the clock must have begun ticking at some point by a recess beginning. This is something new. And it's important. While the President's critics are distracted by half-baked hysteria over hypothetical situations involving conspiracy theories about military detention, we have slipped into a legitimate if sub rosa constitutional crisis.

The fundamental question is, who gets to decide when the Senate is in "recess"?

Viewed at this level, the authority asserted by the President is far more radical and thus far more likely to escape the constraints of the immediate situation. The obvious answer would be that the Senate itself decides, but the President has asserted that he gets to decide. Think of the implications for checks and balances.

The Constitution's ordinary appointment process reflects two judgments: The Presidency is the best place lodge the appointment power, but such power can't be trusted to one man alone and must therefore be constrained by the assent of the Senate. Thus, in the ordinary process, a President cannot unilaterally make appointments over the objections of the Senate. Balance checks power.

The Constitution also supplies an extraordinary appointment power—one that reflects practical constraints on travel that no longer exist, in fact, but let's pass on that for today—that allowing "temporary" appointments to be made when the Senate is recessed. But this authority, too, is hedged. As long as Congress is united (note the difference: In principle the House can demand a recess and the Senate's refusal authorizes the President to adjourn Congress. This should also make you wonder whether "adjournment" and "recess" should be read synonymously in the first place), it can forestall recess appointments by simply staying in session. Thus, even with the extraordinary process, a President still cannot unilaterally make appointments over the objections of the Senate. Balance checks power.

The power asserted by the President this week is balanced against nothing; it is checked by nothing.

[cont.]"Some Democrats have cheered the President for "showing some spine," but they have not thought through the implications of the radical principle that underlies the move. President Obama's fundamental assertion is not that the Senate session is a sham; that's a derivative claim resting on the the unspoken assertion that the President gets to make that decicision in the first place, that the President has unilateral authority to say when his appointment power is unilateral rather than being checked by any other Constitutional actor. That theory is unlimited and illimitable. If the President can determine that Congress is not in session today, there is nothing intrinsic to the theory that prevents him from determining that Congress is not in session at any time. Would the Democrats who have cheered for their team feel happy waking up to the news that overnight, President Daniels (or whoever) determined that the Senate was in recess and handed out recess appointments for every vacancy in the second and third branches? That sounds absurd, and it is—but the possibility is the necessary implication of the President's claim. When a principle leads to absurd results we should look at it with skepticism. When it is also an assertion that a system designed to check every power with balance nevertheless affords unilateral authority, we should look even more closely.

The crisis unleashed by the President lacks the pizzaz of the baubles that usually obsess the President's critics, and in some ways, that makes sense. After all, one could say that a President's unilateral appointment the Secretary of the Treasury is less threatening than the President rounding up his political opponents and throwing them into a military brig. But the possibility of the Death Star showing up in orbit is also more threatening, and is about as likely. On the one hand, we have hypothetical threats; on the other, we have a far more troubling assertion of power, less acute yet more more practical, imminent, and likely to be abused, and one that is at war with our system of checks and balances.

Obviously I can see several places bound for the knife or the needle, I'm not saying I'm incapable of editing it further, I just think I'll get there faster with some help. This is a quintessential "many hands" situation.

Quæstor, you summed up my thoughts about the bust perfectly. Very odd choices, since by making the shirt, jacket and other details their correct local color, it suggests that the subject of the portrait had an extremely... ruddy complexion.

The black colors were definitely done with a patina chemical, and the white is assuredly vitreous enamel.

Lem, Levin seems to believe that Barack Obama is himself unconstitutional. It's chicken littles like him who forced me to include verbose language making clear that I'm not one of them now that the sky actually is falling. Well done, Mark. Your over the top rhetoric about the routine has successfully made it tough to persuade people of the extraordinary.

If the President can determine that Congress is not in session today, there is nothing intrinsic to the theory that prevents him from determining that Congress is not in session at any time.

If Ford's quote is constitutionally correct (I'm paraphrasing).. An impeachable offence or High Crimes and Misdemeanors are 'whatever congress says it is'.. then it follows that it is the congress, not the president, who has been given constitutional powers over the other branches.. if you follow me.

Wait until you see what Obama does as a lame duck after he's voted out.

The Clintons only stole the silverware and pardoned a few friendly criminals.

Whether in 2013 (regrettable but the best we can hope for) or 2017 (really regrettable), I'm not looking forward to any aspect of the post-Obama presidency. As I've said before here, I think, he's going to make Jimmy Carter's post-presidency look positively gracious by comparison.

Re: lame duck; I wouldn't be surprised with a pardon for Rezko; probably not Blago as nobody takes him seriously. God knows what else he'll do in those 2 months.

You guys should tune in to watch your hometown JJ Watt who'll start his first pro-playoff game. He's been a beast this year, maybe the best defensive lineman we ever drafted. He'll bat down at least one pass today, he seems to make a big play in every game.

The Clintons only stole the silverware , pardoned a few friendly criminals ( one of them his own brother a real drug dealer unlike you know who)in exchange for political contribution , signed 20 k pages of regulation ,the treaty of Kyoto and the treaty of the ICJ( repeled by the senate 99-0, including Hillary)

Simon, re: your request for edits, I'd say start by making it half as long and make it sound way less lawyerly. Try some plain language. I don't mean dumb it down; just pare away the fat and get down to the meat. I can't get into the content yet because it's unreadable to me as is. Just my opinion, for what it's worth. And I speak as someone who used to write like that before spending a lot of time training clients before realizing how little of what we say and write is actually understood and retained by our audiences.

@Simon:This week, the President asserted authority to make a recess appointment even though the Senate is not in recess. He can do this, he believes, because he has judged that the Senate's session is a sham. For years, people argued over how long the Senate must be in recess before the President can do this, but no one doubted that the clock started only when the Senate itself declared a recess.

So who gets to decide when the Senate is in recess? The obvious answer would be that the Senate itself decides, but the President says he gets to decide. This is a dramatic change.

In the ordinary process, a President cannot unilaterally make appointments over the objections of the Senate. Balance checks power.The Constitution allows "temporary" appointments to be made when the Senate is recessed. So a President cannot unilaterally make appointments over the objections of the Senate. Balance checks power. The power asserted by the President this week is balanced against nothing; it is checked by nothing.

This is a radical assertion of power, likely to be abused, and destructive of our system of checks and balances. Presidents have been impeached for less.

@Simon; yeah, Pogo's version is more concise. A few more paragraph breaks make it much easier to consume.

Now the only thing about Pogo's edits that needs tying up is this issue of usurpation and abuse of powers. Your case sounds a little abstract with a lot of 'could bes' and 'maybes'. What is a discrete situation where this could be abused? Right now we're talking about a dept. nomination, which to the average voter it doesn't seem like much. What's an example of where this could really be dangerous?

And if Presidents have been impeached for less, what's a lesser-seeming crime that has initiated the impeachment process? How does it compare to this?

You've made your high-level case; now bring the plane in for a landing. Ground it with an example or two that illustrates your point and makes your argument comprehensible to a wide, wide audience. Almost there.

Joe, I agree; I have a third draft that hybridizes my second draft with Pogo's approach. I'll post it in a minute but wanted to respond first. The question you ask about a discrete situation where this could be abused strikes me as related to the answer to your subsequent question to Lem.

The reason that this is bad is because it subverts the structural constitution in a way that eliminates a check on the President's authority, effectively supplying him with a new power that is very likely to be used. People talk about the President's supposed authority to militarily detain people, but it's just exceptionally unlikely that a President would ever do such a thing. But bypassing Congress to install an officer in the face of Congressional opposition? That seems very likely to happen, and to happen often.

So this is a subversive claim of authority. It seems likely to fly under the radar and that criticism will be dismissed as partisanship. It's the kind of thing that doesn't get too much public notice because, as someone pointed out the other day, the public usually doesn't care much about process issues. It's the kind of thing that burrows into the praxis of politics, exceptional today, common in twenty years, and before you know it it's become routine and Congressional consent is simply a formality because everyone knows that if Congress slow-walks the appointment the President will simply give recess appointments. I see the very real potential for this approach to become the usual way of doing business for hundreds of lower-level Presidential appointees—why even take up the Senate's time? You wouldn't think such a thing was possible, but today it's standard practice after a century of abuse to give recess appointments for positions that were vacant before the Senate recessed. This is the thin end of the wedge.

Now, if I was writing the brief for the other side, I would argue unitary executive. I would argue that the appointees we're talking about are the hands of the President, subject to his complete and unfettered direction, so what practical difference does it make who the hand is and how she gets appointed? How stupid to be arguing about how the marionette gets his strings attached! I'm not going to elaborate that point and its defects, but it seems worth mentioning.

Last week, President Obama claimed the power to make recess appointments even though the Senate is not in recess. He can do this, he argues, because he has determined that the Senate's session is a sham—that it's effectively in recess even though it's formally in session. While there’s a long-running debate over how long the Senate must be out before the President’s recess appointment power kicks in, no one has ever doubted that the clock must have begun ticking at some point with the beginning of a recess.

The key question is: Who gets to decide when the Senate is in "recess"? Seen this way, the authority asserted by the President is far more radical (and thus far more likely to escape the constraints of the immediate situation) than it might appear. While the obvious answer would be that Congress decides when it’s in recess, President Obama says that he will decide. We should consider the implications for checks and balances.

The Constitution's ordinary appointment process reflects the judgments that the Presidency is the best place to lodge the appointment power and that this authority must be constrained, as Hamilton explains in Federalist 76. Thus, in this ordinary process, a President cannot unilaterally make appointments over the objections of the Senate. Balance checks power.

The Constitution also supplies an extraordinary appointment process, which (to oversimplify slightly) allows the President to make "temporary" appointments while the Senate is recessed. But this authority, too, is hedged. Congress can forestall recess appointments simply by not recessing, by remaining in session. Thus, even in this extraordinary process, we can say that a President cannot unilaterally make appointments over the objections of the Senate. Balance again checks power.

By contrast, the power asserted by the President this week is balanced against nothing; it is checked by nothing.

Some Democrats have cheered the President for "showing some spine," but they have not thought through the implications of the radical principle underlying his appointments. The President’s fundamental assertion is not that the Senate session is a sham; that's a derivative claim resting on his tacit assertion that he gets to make that decision in the first place. It is that the President has unilateral authority to say when his appointment power is unilateral rather than being checked by any other Constitutional actor. That theory should raise your eyebrows because it is unlimited and illimitable; if the President can determine that Congress is not in session today, nothing intrinsic to the theory prevents him from determining that Congress is not in session at any time. Would those have cheered for these appointments out of immediate political convenience feel happy waking up in a few years to the news that, overnight, President [insert whatever name scares you most] determined that the Senate was in recess and handed out recess appointments for every vacancy in the second and third branches?

Perhaps that hypothetical sounds absurd. It is. But that's the point: The authority claimed by the President opens the door to that result, and when a principle leads to absurd results, we should look at it with skepticism. When it also suggests that a system designed to check every power with balance nevertheless affords unilateral authority, we should look even more closely. This is a radical assertion of power, one that is at war with the Constitution's system of checks and balances and likely to be abused.

Simon, if this is intended as some sort of amicus brief then, as someone wildly out of his element commenting on law, I'd have to say go with it.

If it's to be delivered in a more general format, such as an editorial for a newspaper, then I'd say my feedback is more appropriate and I have additional thoughts on your 3rd draft.

Your hypothetical may be a hoary, cautionary tale, but I'd bet the layperson wouldn't know or care about secondary and tertiary vacancy appointments. What is the real downside of this? That's what you haven't stated. Is it a wildly ideological judicial system filled with judges of a particular political strain? Or is it something else? Ground that motherfucker. If I may refer you to another wildly successful, if wildly errant, hypothetical, look at how climate alarmists portended the consequences of warming. Cities underwater! No polar ice caps! Weather calamaties! Millions displaced, likely dead!

I'm not saying take it to that extreme, and don't exaggerate; but the reason climate change got so much traction so quickly is that they could quickly mentally map to just about everyone what the consequences would be! So what are the consequences of secondary and tertiary appointments? More importantly, what are the consequences to your READER?

Next, I need a short, clear explanation of the legitimacy of what the Senate is doing. Can it be argued that they're the ones fucking around by never calling a recess? If so, how do you rebut that?

Last comment is around your impeachment precedent. Have you dropped that? If so, why?

Simon, one other thing. Is this action by Obama unprecedented? Has no other President ever done this? If one has, what unique circumstances led to him doing this (military conflict, extreme socio-economic condition that needed instant attention, etc.)? What's so big about it this time?

Joe:"Your hypothetical may be a hoary, cautionary tale, but I'd bet the layperson wouldn't know or care about secondary and tertiary vacancy appointments. What is the real downside of this? That's what you haven't stated. … [W]hat are the consequences to your READER?"

That's a great point, and it's difficult to answer. The basic answer is more abstract than what you're looking for: The injury is to the Senate and to the Constitution, and thus to the polity as a whole. (That, by the way, is what puts impeachment onto the table: In the English practice that spawned the American impeachment process, "[T]he critical element of injury in an impeachable offense was injury to the state." Gerhardt, The Federal Impeachment Process 103-4 (1996).) But quite frankly, the likely consequences to any given reader are very low, and even though the likely consequences of military detention to any given reader are just as low (because they're very unlikely), it's easy to personalize the issue. That is, no matter how low the chances of being detained by the military, it's easy to imagine oneself being detained by a nefarious administration, especially in these deeply polarized times when people are apt to regard the other party as outright evil. I don't know how to personalize this.

"Can it be argued that they're the ones fucking around by never calling a recess? If so, how do you rebut that?"

Yes, it can be argued, but it can be refuted, too. The problem is that I can't see any possible way to deal with that issue in the same letter; it would end up twice the length that it is now. I can talk about that stuff here if you're curious and just want to know, but for purposes of the letter, I think that I'd just have to see if someone else wrote in raising that point, thus supplying pretext for a second letter.

"Last comment is around your impeachment precedent. Have you dropped that? If so, why?"

Yeah. It goes back to the chicken little problem that I mentioned above: Idiots like Mark Levin have been running around for years screaming for Obama's impeachment and claiming that every trivial thing he does is a constitutional crisis. It seems to me that everyone else is tired of hearing it, and they just tune it out. They don't take it seriously, it's just partisan noise. Well, the problem is, that makes it very easy for what I'm saying here to be dismissed. This is for a general audience; they don't know me. For all they know, I could be one of the chicken littles, a Ron Paul guy who knows nothing about the Constitution but sure likes to shoot off his mouth about it. For all they know, this is my ninth call for Obama to be impeached this week! And so I really felt the need to create distance between myself and those folks. Since the verbiage that did that work has been dropped, it struck me that I might be able to redress the balance by not using the "I" word. Does that make sense?

Simon: I think you should consider contacting the paper in question to ask if they accept guest op-ed pieces. What you're attempting seems to be perhaps--depending on the paper in question--to bit a bit out of the scope of a Letter to the Editor which in any case is highly likely to be subject to perhaps even extensive condensation.

Just a thought, based on my admittledly old experience (and that of, for example, Callimachus who has dealt with both types of things for many years and still does, I believe.)

re: impeachment, yes, makes good sense. I think you made a wise choice.

re: personalization, I guess I look at this in the same vein as making a business case. When I make a business case for something new or different, I have to tie it directly to a consumer or company benefit in the form of a better product or lower costs. If I were to try and make a case because it would be injurious to the company not to do so, yet my case lacked specificity, it would not be persuasive. My bosses would shoot it down unless there were some sort of extraordinary circumstances.

Accordingly, it will be hard to persuade your readers if your main effect is an injured 'state'. As such you haven't fully won me over yet. I wonder if you offered a hypothetical that showed you were arguing in good faith (and not partisanly as Mark Levin and others have done): What if Nixon had exercised the same judgement when he was in hot water? What sort of things could he have done to protect himself and shield himself from scrutiny? Could he have imprisoned anyone on his famous 'enemies list'?

re: the Senate, you may be able to include a brief parenthetical expression to justify their actions, ex: (admittedly delaying recess, which is typical of congressional gamesmanship, such as their inability to submit a budget for 3 years despite being required by law to do so). In that sense you are implying that yes, they are defying an edict, but it's not atypical or extraordinary.

Parentheticals are good ways to sneak in your assumptions without adding too much extra qualifying text.